When the FTC decides not to pursue an investigation, it often issues a short closing letter to the company explaining why FTC staff decided not to recommend enforcement. The letters are just a few paragraphs long and don’t contain a lot of details, but if you read between the lines, you can often get some ideas about what types of conduct the FTC considers to be problematic.
Almost all of the closing letters in 2020 involve Made in the USA claims, showing that is still a hot topic for the FTC, but a recent closing letter on a different topic caught our eye. That letter was issued to Yotpo and concerns the company’s platform that gives clients control over how they collect, display, and market consumer reviews and other UGC.
The investigation focused on whether Yotpo’s star-rating filters provided clients with the ability to suppress negative reviews and thereby mislead consumers into believing that the displayed reviews reflect the sentiments of all reviewers. Staff ultimately decided not to recommend enforcement for a number of reasons, including Yotpo’s commitment to implement measures to protect against the misuse of its services to suppress or delay the posting of negative reviews.
Clients sometimes ask us whether they can “curate” reviews. Although there may be circumstances in which that’s possible, this closing letter suggests that the FTC will frown upon an attempt to suppress negative reviews, especially if that’s done in a manner that could mislead consumers about the larger universe of reviews. The FTC acknowledges that companies can filter out some reviews – such as reviews that are inappropriate or irrelevant – but the criteria for suppressing reviews must be applied uniformly to all reviews. You can’t just hide a review because it’s negative.